City of Old Town, ME SECTION 107 Board of Appeals

§ 107 Establishment and organization.

[Ord. of 12-7-1998]

(a) There shall be a board of appeals of five members and one associate member appointed by the municipal officers as provided in 30-A M.R.S.A. §§ 2691 and 4353. The term of members shall be such that the term of one member will expire each year. The term of the associate member shall be five years. The associate member shall act on the board in place of any member who may be unable to act due to personal involvement, absence or physical incapacity.

(b) The members of the board shall annually elect one of their number chairman to preside at all meetings of the board. At any meeting in which the chairman is not present the members in attendance will elect an acting chairman to preside at the meeting. Meetings shall be held at the call of the chairman and at such times as the board may determine. All meetings of the board shall be open to the public, minutes of proceedings shall be kept by a staff clerk appointed by the City Manager and all shall be public records.

(c) A quorum shall consist of three members. Municipal officers and officials and their spouses are hereby disqualified from and shall not be appointed to membership on the board of appeals. A member of the board may be dismissed for cause by the municipal officers before the expiration of his term.

§ 107.1 Appeals to the superior court.

Appeals may be taken from the board of appeals to the superior court. The appeal to the superior court shall be taken within 30 days after the decision of the board. Notice of the appeal shall be ordered by the court, and the appeal shall be tried and determined by the court without a jury in the manner and with rights provided by law in other actions so heard. Costs may be awarded to the prevailing party by the court as justice requires.

§ 107.2 Powers and duties of the board of appeals.

[Ord. of 12-7-1998, Ord. of 7-6-1999]

(a) Appeals shall lie from the decision of the Code Enforcement Officer to the board of appeals and from the board of appeals to the superior court, according to the provisions of 30-A M.R.S.A § 4353.

(b) The board shall have the following powers and duties:

(1) Administrative review. To hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by the Code Enforcement Officer in the enforcement of this ordinance. The action of the Code Enforcement Officer may be modified or reversed by the board of appeals by majority vote.

(2) Variance appeals. Except as provided in Subsections (c), (d) and (e), the board is authorized to grant a variance only when strict application of this ordinance to the petitioner and the petitioner's property would cause undue hardship. The term "undue hardship," as used in this ordinance, means:

a. The land in question can not yield a reasonable return unless a variance is granted; and

b. The need for a variance is due to the unique circumstances of the property and not to the general conditions of the neighborhood; and

c. That the granting of the variance will not confer on the applicant any special privilege that is denied by this ordinance to other properties in the same zone and would not be injurious to the neighborhood or contrary to the intent of this ordinance; and

d. That the hardship is not the result of action taken by the applicant or a prior owner.

(3) Disability variance. In accordance with 30-A M.R.S.A § 4353(4-A), the board may grant a variance to an owner of a dwelling for the purpose of making that dwelling accessible to a person with a disability who resides in or regularly uses the dwelling. The board shall restrict any variance granted under this subsection only to the installation of equipment or the construction of structures necessary for access to, or egress from, the dwelling from [of] the person with the disability. The board may impose conditions on the variance, including limiting the variance to the duration of the disability or to the time that the person with the disability lives in the dwelling. For purposes of this ordinance, a disability has the same meaning as a physical or mental handicap under 5 M.R.S.A. § 4553, and the term "structures necessary for access to or egress from the dwelling" is defined to include railing, wall, or roof systems necessary for the safety or effectiveness of the structure.

(4) Yard variance for single-family dwellings.

a. The board is authorized to grant a yard variance for a single-family dwelling. The granting of a variance under this section from a yard requirement is only authorized when strict application of the zoning ordinance to the petitioner and the petitioner's property would cause undue hardship.

b. The term "undue hardship," as used in this subsection, means:

1. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;

2. The granting of a variance will not alter the essential nature of the locality;

3. The hardship is not the result of action taken by the applicant or a prior owner;

4. The granting of a variance will not substantially reduce or impair use of abutting properties; and

5. The granting of variance is based upon demonstrated need, not convenience, and no other feasible alternative is available.

c. The variance under this subsection may only be granted for a single-family dwelling that is the primary year-round residence of the petitioner. A variance under this provision may not exceed 20% of a yard requirement and may not be granted if the variance would cause the area of the dwelling to exceed the maximum permissible lot coverage. The board is further authorized to grant a variance under this section to exceed 20% of a yard requirement except for minimum yards on a wetland or water body requirement within shoreland zones by rules adopted pursuant to 38 M.R.S.A. § 435 et seq. if the petitioner has obtained the written consent of a non-affecting abutting land owner.

(5) Variance from dimensional standards.

a. In accordance with 30-A M.R.S.A. § 4353(4-C), the board is authorized for one-family or single-family dwellings only, as defined in this ordinance, to grant a variance from the dimensional standards of the zoning ordinance when strict application to the ordinance by the petitioner and the petitioner's property would cause a practical difficulty and when the following conditions exist:

1. The need for a variance is due to unique circumstances of the property and not the general condition of the neighborhood;

2. The granting of a variance will not produce undesirable changes in the character of the neighborhood and will not unreasonably detrimentally affect the use or marketability of abutting properties;

3. The practical difficulty is not the result of action taken by the petitioner or a prior owner;

4. No other feasible alternative to a variance is available to the petitioner;

5. The granting of a variance will not unreasonably adversely affect the natural environment; and

6. The property is not located in whole or in part within shoreland areas as described in 38 M.R.S.A. § 435.

b. As used in this section, "dimensional standards" means and is limited to ordinance provisions relating to lot area, lot coverage, frontage, and yard requirements. As used in this ordinance, "practical difficulty means the strict application of the ordinance to the property precludes the ability of a petitioner to pursue a use permitted in the zone in which the property is located and results in significant economic injury to the petitioner.

(6) Additional appeals. In addition to the authority granted to the board of appeals by virtue of the foregoing provisions, the board shall hear and decide appeals in accordance with 30-A M.R.S.A. § 2691(4) concerning any matter for which the board has been granted jurisdiction under any ordinance of the City of Old Town.

§ 107.3 Appeal procedure.

[Ord. of 5-7-1984; Ord. of 8-19-1985; Ord. of 9-5-1989]

(a) In all cases a person aggrieved by a decision of the building inspector shall commence his appeal within 30 days after receipt of a written decision from the building inspector. The appeal shall be filed with the board of appeals on forms to be approved by the board, and the aggrieved person shall specifically set forth on said form the grounds for said appeal.

(b) Before taking action on any appeal the board of appeals shall hold a public hearing. All applicants shall pay a fee of which will be promulgated by the City Council. The City Council will review the fee from time to time. The application shall be submitted to the board of appeals at least 30 days prior to a regularly scheduled meeting.

The board of appeals shall notify interested parties by placing a notice of hearing in one newspaper with local circulation at least seven days prior to the hearing stating the nature of the appeal and the time and place of the public hearing thereon. Owners of abutting property shall be notified by direct mail.

(c) For the purposes of this section, the owners of property shall be considered to be the parties listed by the assessor of taxes for the City of Old Town as those against whom taxes are assessed. Failure of any property owner to receive notice of public hearing shall not necessitate another hearing or invalidate any action by the board of appeals.

(d) Following the filing of an appeal, the board of appeals for the City of Old Town shall notify forthwith the building inspector, the Planning Board and the City Council, and the appeal shall be in order for hearing at the next meeting of the board of appeals.

(e) At any hearing a party may appear by agent or attorney. Hearings shall not be continued to other times except for good cause.

(f) The clerk of the board or his designated representative shall attend all hearings and may present to the board of appeals all plans, photographs or other material he deems appropriate for an understanding of the appeal.

(g) The appellant's case shall be heard first. To maintain orderly procedure, each side shall proceed without interruption. Questions may be asked through the chair. All persons at the hearing shall abide by the order of the chairman.

(h) The concurring vote of three members of the board in official meeting shall be necessary to reverse any order or decision of the building inspector, or to decide in favor of the applicant on any matter on which it is required to pass under this ordinance or to effect any variation in the application of this ordinance.

(i) A right of appeal under the provisions of this chapter secured by vote of the board of appeals shall expire if the work or change involved is not commenced within one year of the date of which the appeal is granted.

(j) If the board of appeals shall deny an appeal, a second appeal of a similar nature shall not be brought before the board within one year from the date of denial by the board of the first appeal unless in the opinion of a majority of the board substantial new evidence shall be brought forward, or unless the board finds, in its sole and exclusive judgment, that an error or mistake of law or misunderstanding of facts shall have been made.

(k) Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon shall be decided by a majority vote of the members, except the member who is being challenged.

(l) The chairman shall call meetings of the board as required. The chairman shall also call meetings of the board when requested to do so by a majority of the members or by the municipal officers.

(m) The clerk shall maintain a permanent record of all board meetings and all correspondence of the board. The clerk shall be responsible for maintaining those records which are required as part of the various proceedings which may be brought before the board. All records to be maintained or prepared by the clerk are deemed public, shall be filed in the municipal offices and may be inspected at reasonable times.

(n) The board may provide by rule, which rule shall be recorded by the clerk, for any matter relating to the conduct of any hearing, provided that any rule may be waived by the chairman upon good cause shown.

(o) The board may receive any oral or documentary evidence but shall provide as a matter of policy for the exclusion of irrelevant, immaterial or unduly repetitious evidence. Every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(p) The transcript of testimony, if any, and exhibits, together with all papers and requests filed in the proceeding shall constitute the record. All decisions shall become a part of the record and shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of facts, law or discretion presented and the appropriate order, relief or denial thereof. Notice of any decision shall be mailed or hand delivered to the petitioner, his representative or agent, the Planning Board and the municipal officers within seven days of their decision.

(q) The board shall render a decision on each appeal within 30 days following the public hearing on such appeal.

(r) An appeal may be taken, within 30 days after the decision is rendered, by any party to superior court from any order, relief or denial in accordance with Rule 80B. The hearing before the superior court shall be a trial de novo without a jury.